Bill extending Chief Justice's tenure still in conflict with Constitution

By Loammi Wolf

On July 6 2011 the Cabinet issued a statement in which an amendment of the Judges’ Remuneration and Conditions of Employment Act 2001 has been announced.

The envisaged amendment Bill has been published on July 7 and is currently open to public comment.

In terms of the Cabinet statement, the Bill seeks to amend the Judges’ Remuneration and Conditions of Employment Act 2001 (Act No. 47 of 2001) which provides for the appointment of judges, including the chief justice.

It has been stated that — even before the Bill was adopted — President Jacob Zuma “duly extended the Chief Justice’s term of office for a period of five years with effect from August 15 2011 in accordance with section 8(a) of the Judges’ Remuneration and Conditions of Employment Act”.

It seems that the Bill should legitimise the extension of the tenure of the Chief Justice in terms of section 8 of the Act, which President Zuma already announced on June 2 2011, on an ex post facto basis.

The Cabinet expressed its confidence “that the Judges’ Remuneration and Conditions of Employment Act is constitutional”.

The Bill applies to the Chief Justice and President of the Supreme Court of Appeal and provides that if either has not completed a period of seven years of active service, must continue to perform active service until either completes seven years or attains the age of 75 years whichever occurs first.

The Bill also provides for the Chief Justice and President of the Supreme Court of Appeal to be discharged from active service at their request, subject to the approval of the President or through infirmity.

The problem, which confronts the Cabinet, is not this Bill however.

The essence of the matter is that the Bill and the current legislation regulating the appointment and tenure of judges must be in conformity with the constitutional provisions, which prescribe how this should be regulated and which sets limits to the competence of Parliament to adopt legislation in this regard.

Section 176(1) of the Constitution regulates the appointment and tenure of Constitutional Court Judges.

The original section 176(1), which was adopted in 1994, read as follows:
“A Constitutional Court judge is appointed for a non-renewable term of 12 years, but must retire at the age of 70.”

This provision was amended in 2001 and now reads as follows:
“A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge. (emphasis added)

In other words, this provision states that the term of office of all Constitutional Court judges is 12 years, but if they turn 70, they must retire even if their 12 year term has not been completed.

In 2001 this amendment was adopted in order to be able to extend the term of office of Chief Justice Chaskalson. He turned the offer down though. The extension of the tenure of the current Chief Justice is now the first time that this provision will be applied in practice.

It is therefore important to consider whether this amendment was constitutional in the first place.

What this amendment legitimises is not that Parliament may adopt a Bill that would regulate exceptions to the maximum tenure of 12 years of office.

If that were the case, the amendment would have specified something along the lines of:
“A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first. Parliament may adopt legislation to regulate the extension of the term of office of the Chief Justice beyond the age of 70 if his 12 year term has not been completed at the time when he turns 70.”

In other words, the Constitution must expressly mandate Parliament to adopt such legislation, and it must be regulated in generally applicable terms. This is what the envisaged amendment Bill also attempts to do.

However, this is not what the 2001 constitutional amendment of section 176(1) mandated Parliament to do. It did not empower Parliament to regulate the extension of the term of office of the Chief Justice or any other Constitutional Court judge by way of statute.

This provision in fact mandates a lex ad personam. Section 176(1) in its current form requires Parliament to adopt a statute with the following wording:
“The term of office of Chief Justice Sandile Ngcobo is extended until … [date].”

Such a lex ad personam, however, is expressly forbidden by the limitation clause in section 36 of the Constitution. The 2001 amendment of section 176(1) is therefore unconstitutional. Before Parliament could therefore adopt this bill, it must first bring section 176(1) of the Constitution in an appropriate form.

The constitutional issues at stake here was set out in detail in a more extensive article, which can be accessed here.